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FAA Reiterates That ICAs are Not Proprietary Data

The FAA has published an update to Advisory Circular (AC) 120-106A,on the Scope and Recommended Content for a Contractual Agreement Between an Air Carrier and a Contract Maintenance Provider.  This advisory circular provides guidance on the terms of the relationship between an air carrier and its contract maintenance providers.

The new revision expands on the guidance and includes elements that are important to the PMA community as well.

FAA Policy Statement PS-AIR-21.50-01 is an important FAA policy statement that precludes Design Approval Holder’s from using their monopoly over the Instructions for Continued Airworthiness to exact additional anti-competitive concessions.  A reason for this was because those anti-competitive concessions could undermine safety, as well as inhibiting third party development of safety improvements.

My mention of PS-AIR-21.50-01 is not the non-sequitur it might seem to be.  That guidance is now directly referenced in AC 120-106!  Section 5 of the guidance discusses elements of the contractual agreement between the air carrier and the maintenance provider.  Subsection 5(b)(4) recommends a contract clause on proprietary data, but makes it clear that this means the air carrier’s own data, and stresses that the ICAs are not proprietary data.

4) Proprietary Data. Many times, air carrier general maintenance manuals are designed for in-house maintenance. These manuals may contain proprietary or other confidential information that an air carrier may not want to share with an MP. In many cases, the MP also works on competitors’ aircraft. This has a tendency to make air carriers reluctant to share this information, and therefore they do not. The proper handling of proprietary data issues should be addressed in the contractual agreement between the air carrier and the MP.

NOTE: The proprietary or other confidential information referred to in this paragraph refers only to that information developed by an air carrier for purposes of its in-house maintenance. Proprietary or confidential information does not refer to other data to which the MP is entitled, such as instructions for continued airworthiness (ICA) under 14 CFR part 21, § 21.50(b), and in accordance with FAA Policy Statement PS-AIR-21.50-01, Type Design Approval Holder Inappropriate Restrictions on the Use and Availability of Instructions for Continued Airworthiness. Such data that is required to be made available under the regulations may not be restricted by design approval holders (DAH) with respect to an air carrier’s approved maintenance manuals, through restrictive language in the ICA, or through restrictive access or use agreements.

Some manufacturer have used ICA restrictions to preclude use of PMAs, and PS-AIR-21.50-01 helps to address those restrictions in a positives and pro-competitive manner.

Some air carriers find themselves getting conflicting information about whether ICAs are proprietary data.  We’ve written in the past about why ICAs cannot be proprietary data (e.g. they are required to be made available and this federal requirement preempts state-law trade secret protections).  Because they cannot be proprietary data, one shouldn’t use a license of that information to perpetrate anti-competitive restrictions.  This recently-published NOTE helps to emphasize the point.

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About Jason Dickstein

Mr. Dickstein is the President of the Washington Aviation Group, a Washington, DC-based aviation law firm. He represents several aviation trade associations, including the Aviation Suppliers Association, the Aircraft Electronics Association, the Aircraft Fleet Recycling Association and the Modification and Replacement Parts Association.

Discussion

One thought on “FAA Reiterates That ICAs are Not Proprietary Data

  1. Very interesting topic. But what about signed contracts that effectively restrict use of ICAs? For example, is there a legitimate way out of a signed licensing agreement between a maintenance provider and design approval holder where the contract grants the MP rights to use the ICAs for services but is conditional on not using the data therein to develop DER repairs or PMA parts? If the contract would have to be adjusted at the outset to preclude this language, then it is unlikely that the MP would obtain a license in the first place.

    Posted by Tim Blaskovich (@TimPathfinder) | February 1, 2016, 10:49 am

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